JUDGMENT : ( 1. ) THIS judgment governs the disposal of criminal appeals Nos. 12, 22 and 34 of 1978 and miscellaneous criminal case No. 429 of 1978, preferred by, (i) Shripal, (ii) Pritamsingh, (iii) (a) Ramprasad (b) Devilal, (iv) Birbal and (v) Shersingh respectively, arising out of judgment dated 23-12-1977 rendered by the additional Sessions Judge, Sheopur Kalan, district Morena, in Sessions Trial No. 91 of 1977. ( 2. ) IN the said Sessions trial the Additional Sessions Judge convicted the appellant Pritamsingh under section 302 and the appellants Shripal and Birbal under section 302 read with section 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life. He further convicted the appellants ramprasad, Devilal and Birbal under Section 201 of the Code and sentenced them to undergo imprisonment for 3 years each. The sentences imposed upon the appellant Birbal were directed to run concurrently. The appeals are directed against the same convictions and sentences. The miscell aneous criminal case has been preferred by Sub-Inspector Shersingh for expunging certain strictures passed against him by the Additional Sessions Judge in the impugned judgment. One Bhagwanlal was also tried under Section 201 ibid but he was acquitted. ( 3. ) PRABHULAL (P. W. 1) is real younger brother of Chhotu, who was alleged to have been murdered: Both the brothers lived together at village Hasilpur-Kalan. According to him, Chhotu left the village after 4. 30 P. M. on the evening of 13-12-1976 for the purpose of fetching wood from forest and never returned there-after. On 26-2- 1977, he lodged a report (Ex. D. /3) at Police-Station dhodhar, having jurisdiction, to that effect. On 7-4-1977 he submitted a complaint (Ex. P. /1) before the S. D. O, Police that no action was being taken by the police station Dhodhar and that he apprehended that his brother Chhotu had been murdered by the appellants Shripal, Pritamsingh, Birbal and Ramprasad with support of Dhodhar police. Thereupon,in compliance with the order of the s. D. O. Police marg (Ex. P/10) was registered on 25-4-1977 by Sub-Inspector shersingh (P. W. 14), who was officer-in-charge of the police-station Dhodhar. Subsequently by order dated 2-5-1977 (Ex. P/14) of the S. D. O. P. , the investigation was entrusted to Assistant Sub-Inspector Shriram (P. W. 15) of police-Station Badoda. On 22-5-1977, the A. S. I. Shriram (P. W. 15) recorded dehati Nalishi (Ex. P/10) was registered on 25-4-1977 by Sub-Inspector shersingh (P. W. 14), who was officer-in-charge of the police-station Dhodhar. Subsequently by order dated 2-5-1977 (Ex. P/14) of the S. D. O. P. , the investigation was entrusted to Assistant Sub-Inspector Shriram (P. W. 15) of police-Station Badoda. On 22-5-1977, the A. S. I. Shriram (P. W. 15) recorded dehati Nalishi (Ex. P/12) after some investigation and forwarded it to police-station Dhodhar where, on its basis, vide Ex. P/13, offences under Sections 302 and 201 were registered. After further investigation, the challan was put up against the appellants and Bhagwanlal. ( 4. ) THE case is one in which dead body of the person alleged to have been murdered could not be recovered vide seizure-memo dated 23-5-1977 (Ex. P/ 2), a button with a broken hole, some earth, 8 burnt teeth, a very small piece of cloth, burnt pieces of bones, ash and a piece of stone were seized by the investigating officer Shriram (P. W, 15) from a spot in a forest at a distance of about 3 1/2 miles from the village. On 24-5-1977 vide seizure memo Ex. P/5 he recovered some pieces of bones from a river in consequence of information (Ex. P/4) furnished by the appellant Birbal under Section 27 of the Evidence Act. That is admitted by the appellant Birbal in answer to question No. 16 in his examination. The bones were of human origin, as proved by Dr. Premchand Runwal (P. W. 16), although it could not be ascertained as to whether they were of the same person and whether they belonged to a male or a female. The version of Prabhu (P. W. I), younger brother of Chhotu, that the seized button and the small piece of cloth were of Chhotus shirt is not reliable for the reasons that the articles are common, that there is no distinguishing mark thereon and that there was no prior test-identification. ( 5. ) ACCORDING to Prabhu (P. W. I) his elder brother Chhotu had left the village on the evening of 13-12-1976 along with the appellants Pritam Singh and ramprasad and the acquitted accused Bhagwanlal into bullock carts one of which was driven by the appellant Ramprasad and the other by the acquitted accused Bhagwanlal. These versions are repugnant to his version in his report dated 26-2-1977 (Ex. These versions are repugnant to his version in his report dated 26-2-1977 (Ex. D/3) wherein his versions were to the effect that Chhotu had gone behind a bullock-cart driven by the appellant Pritamsingh and the appellant Birbal was going behind Chhotu. Names of the appellant Ramprasad and the acquitted accused Bhagwanlal were conspicuously absent therefrom. In his testimony, he denied to have reported that the bullock-cart was being driven by the appellant Pritamsingh. That is negatived by head-constable Prahlad prasad Sharma (D. W. I) by whom the report (Ex. D/3) was recorded. In his complaint dated 7-4-1977 (Ex. P/1) to the S. D. O. police, he added the name of the appellant Ramprasad, and in his testimony, further added the name of the acquitted accused Bhagwanlal. According to him (as PW 1) next morning, when he asked the appellant Pritamsingh as to the whereabouts of his brother Chhotu, the appellant Pritamsingh told him that he had gone to Sheopur by railway train. Then, he questioned the acquitted accused Bhagwanlal, who replied that he (Bhagwanlal) had already returned with his calf. About 20-22 days afterwards according to him, on being again questioned by him, the appellant Pritamsingh told that Chhotu had expressed his desire to go to Rajasthan and he might have gone there. In Ex. D/3 it was not stated by him that Bhagwanlal was at all questioned by him about 20-22 days afterwards. In Ex. P/1, he had stated that, next morning, he had questioned the appellant Ramprasad who told him that chhotu had gone to Sheopur. It was not stated by him therein that the appellant pritamsingh or Bhagwanlal were at all questioned by him next morning. According to him, at the time of departure, Chhotu had told him that he would return at about 10-11 P. M. the same night. When Chhotu did not return, what prabhu (P. W. I) was waiting for till 26-2-1977 (for more than two months) on which date the report Ex. D/3 was lodged by him ? The unreasonable delay in lodging the report, coupled with the infirmities already discussed, makes his story extremely doubtful. There was ample time for him to fabricate the story by 26-2-1977. There was further fabrication when, in Ex. D/3 was lodged by him ? The unreasonable delay in lodging the report, coupled with the infirmities already discussed, makes his story extremely doubtful. There was ample time for him to fabricate the story by 26-2-1977. There was further fabrication when, in Ex. P/1 dated 7-4-1977, he tried to implicate the appellant Ramprasad and still further fabrication at the time of giving evidence as P. W. 1 when he tried to implicate the acquitted accused bhagwanlal also. This witness Prabhu (P. W. 1) does not appear to be a peace-abiding person as appears from his admissions in paragraphs Nos. 13 and 14 of his deposition that he, Nishar {p. W. 11) and others are facing trial for alleged offences punishable under Sections 506-B, 392 and 366 of the Indian Penal Code, that he was also tried for an alleged offence of theft and that he and others were also prosecuted for assault on father of the appellant No. 1 Shripal. Under these circumstances, he cannot safely be relied upon. Nishar (P. W. 11) who tried to support his versions as to the departure of Chhotu along with the appellant pritamsingh and others is also not reliable. According to him, it was at noon time when he was present at the house of Chhotu and Prabhu that the appellant Pritamsingh arrived and then Pritamsingh, Chhotu, Ramprasad and Bhagwanlal departed. According to Prabhu, it was not noon time but evening time. Thus, the statements of Prabhu (P. W. I) and Nishar (P. W. 11) are repugnant to each other. Nishar (P. W. I 1) is also an accused with Prabhu (P. W. 1)in the criminal case under sections 506-B, 392 and 366 of the Indian Penal Code, as per statement of Prabhu (P. W. I) in paragraph No. 13 of his deposition read with admission of Nishar (P. W. 11) name was in paragraph No. 7 of his depositions Nishars (P. W. 11) name was conspicuously absent from Ex. D/3 and ex. P/1. In paragraph No. 8 of his deposition, he admitted that his statement was not recorded by the investigating officer. Under these circumstances Nishar (P. W. 11) appears to be a got up witness and no reliance can be placed upon him. ( 6. ) HIRALAL (P. W. 2) was examined as the only eye-witness to prove the alleged incident. P/1. In paragraph No. 8 of his deposition, he admitted that his statement was not recorded by the investigating officer. Under these circumstances Nishar (P. W. 11) appears to be a got up witness and no reliance can be placed upon him. ( 6. ) HIRALAL (P. W. 2) was examined as the only eye-witness to prove the alleged incident. According to him, that day, he had gone to the forest for the purpose of grazing cattle numbering about 20-22. He used to return home at about 4 P. M. but, that day, ordinarily, he remained there till the evening searching for 3 calves which were missing. In the evening, on hearing sounds of bullock-carts he went in that direction so as to enquire from the cart-walas about his lost calves. Then, from a distance of about 20-22 yards he saw that two bullock-carts were going on their way, that Chhotu was driving the front bullock-cart, that the acquitted accused Bhagwanlal was driving the other bullock-cart, that the appellant Pritamsingh dealt an axe-blow unto Chhotu who, as a result thereof, fell down on the ground. Even after he fell down, the appellant pritamsingh dealt 3-4 axe-blows more unto him with the result that he died on the spot. After thinking over the question whether he should proceed towards that spot or run away he decided to go to that spot. On his reaching there, the appellant Pritamsingh threatened to see him afterwards and asked him to sit down. In obedience to that command, he sat down. Then, the appellants pritamsingh and Ramprasad and the acquitted accused Bhagwanlal dragged the dead body of Chhotu up to a distance of about 20-25 cubits. There after the appellant Birbal arrived from the village and shook hands with Pritamsingh. Then Pritamsingh and his companions came near him after covering the dead body with stones and Pritamsingh threatened to kill him then and there. At that, he promised not to tell any body about the incident. After making that promise, he left the spot. ( 7. ) THE story advanced by Hiralal (P. W. 2) is unnatural. He would not dare to go near the spot for fear of being himself killed. At the spot, he would not remain sitting but, instead, run away because, according to him, Pritamsingh had threatened to see him afterwards. After making that promise, he left the spot. ( 7. ) THE story advanced by Hiralal (P. W. 2) is unnatural. He would not dare to go near the spot for fear of being himself killed. At the spot, he would not remain sitting but, instead, run away because, according to him, Pritamsingh had threatened to see him afterwards. There was ample opportunity for him to run away when, according to him Pritamsingh and others were busy dragging the dead body and covering it with stones. The trial Court did not believe his versions with regard to the alleged complicity of the acquitted accused Bhagwanlal. He was also implicated by him in the matter of dragging the dead body and covering it with stones. If he could not. be believed with regard to Bhagwanlal, his versions with regard to the alleged complicity of Pritamsingh, Birbal and Ramprasad could also not be safely relied upon. It is significant that this witness was completely silent about the alleged incident till his statement was recorded by the investigating officer Shriram (P. W. 16) on 23-5-1977 i. e. , about 5 months after the alleged incident. His version that it was due to fear that he did not tell any body at home nor anyone in the village is too lame an excuse to be given any credence to. Under section 39 (v) of the Code of Criminal Procedure, he was duty-bound to give to the nearest Magistrate or police-officer information of the incident which he claims to have witnessed. The position of a man, who claims to have witnessed the alleged incident but fails to divulge the secret is similar to that of an accomplice and needs such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as truthful witness. The view is fortified by decision of their lordships of the Supreme Court in the case of Vemireddy Satyanarayan reddy and others v. State of Hyderabad, A. I. R. 1956 SC 379. In that case, P. W. 14 was examined as the solitary eye-witness who had not divulged the secret of the murder to anyone else except to his father. The view is fortified by decision of their lordships of the Supreme Court in the case of Vemireddy Satyanarayan reddy and others v. State of Hyderabad, A. I. R. 1956 SC 379. In that case, P. W. 14 was examined as the solitary eye-witness who had not divulged the secret of the murder to anyone else except to his father. Their Lordships observed -"indeed, there can be no doubt that the evidence of a man like P. W. 14 should be scanred with much caution and we must be fully satisfied that he is a witness of truth, especially when no other person was present at the time to see the murder. Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth. Such corroboration need not, however, be on the question of the actual commission of the offence, if this was the requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same. What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness. " there is no such corroboration of the material part of the testimony of Hiralal (P. W. 2) connecting the appellants with the alleged incident as to satisfy reasonable minds that he can be regarded as a truthful witness. ( 8. ) ACCORDING to Ramswaroop (P. W. 5), about 10 months before the date of his evidence (6-10-1977) he had gone to a liquor-shop in search of a man at about 5-30 p. m. On the way, in Phoolsinghs Bada, the appellants Shripal, Pritam and birbal were sitting. The Bada was enclosed by a wall of the height of about 2 feet. He sat down at a distance of about 4-5 cubits and, at that time, heard the appellant Shripal asking the appellant Pritamsingh to kill Chhotu and take Rs. The Bada was enclosed by a wall of the height of about 2 feet. He sat down at a distance of about 4-5 cubits and, at that time, heard the appellant Shripal asking the appellant Pritamsingh to kill Chhotu and take Rs. 4000/- from him for doing so. At that, according to him the appellant pritamsingh demanded the amount from the appellant Shripal, who replied that he would make payment after the job was done. It is significant that he did not tell anybody, not even Chhotu, about it. It was only when his statement was recorded by the investigating officer Shriram (P. W. 15) about 5 months after the alleged murder that he divulged it. Conspiracy from its very nature, is conceived and hatched in complete secrecy and not so loudly as Ramswaroop (P. W. 5) wants us to believe, for otherwise the whole purpose would fail. It is also surprising that the said conversation would take place exactly at the time when this witness would sit for passing urine at that place or that this witness would sit at that place for passing urine exactly when the conversation was going to be entered into. Thus the story advanced by him is also unnatural. In the circumstances, no reliance can be placed upon the testimony of this witness. ( 9. ) ACCORDING to Azimullah (P. W. 4) about a year before the date of his evidence (6-10-1977) he had gone to the house of the appellant Shripal in search of wheat. At that time, the doors of the house were found closed. He overheard the appellant Pritamsingh demanding full payment of Rs. 4000/-from the appellant Shripal, both of whom were inside the house. He went on to say that the appellant Shripal asked the appellant Pritamsingh to accept part-payment at that time and the remaining amount afterwards. At that time, according to him, on his call the door was opened for him and, on his entering, he saw the appellant pritamsingh keeping some currency-notes. From his statements in cross-examination it appears that he meant to say that the appellants Shripal and pritamsingh were in the third storey of the house while he was on the ground outside the back-door of the house leading straight to the third storey. From his statements in cross-examination it appears that he meant to say that the appellants Shripal and pritamsingh were in the third storey of the house while he was on the ground outside the back-door of the house leading straight to the third storey. The appellants Shripal and Pritamsingh could not have been talking so loudly as to make the talk audible to this witness standing outside the door. The witness found himself unable to tell the time of his alleged visit. That lets the rabbit out of the hat. Had he really gone he should have been able to tell as to whether it was morning,day, afternoon, evening or night time. His statement was also taken by the investigating officer Shriram (P. W. 15) about 5 months afterwards. In the circumstances, this witness can also not be safely relied upon. ( 10. ) IN answer to question No. 11 in his examination the appellant Birbal stated that Shripal had promised to pay Rs. 4,000/- to Pritamsingh for murdering Chhotu. That is not admissible in evidence against Pritamsingh. ( 11. ) AN axe (Article-C) was alleged to have been seized on 29-5-1977 vide seizure-memo Ex. P.-7 from the house of the appellant Shripal in consequence of information given by the appellant Pritamsingh under section 27 of the Evidence act. Although, it was found stained with blood, the origin of the blood stains could not be determined. So, the seizure is good for nothing. ( 12. ) RAMSWAROOP (P. W. 6) tried to prove that he had seen the appellants ramprasad, Devilal and Birbal burning Chhotus dead body in the forest when the dead body had already been partially eaten up by animals and was emanating foul smell. He did not disclose it to any body before giving his statement to the investigating officer Shriram (P. W. 15) about 5 months after wards. His position is also akin to that of an accomplice and his testimony suffers for want of corroboration. He admits that two criminal cases of theft are pending against him. In the circumstances, his uncorroborated testimony cannot be safely relied upon. ( 13. His position is also akin to that of an accomplice and his testimony suffers for want of corroboration. He admits that two criminal cases of theft are pending against him. In the circumstances, his uncorroborated testimony cannot be safely relied upon. ( 13. ) IN his examination under section 313 of the Code of Criminal procedure 1973, the appellant Birbal admitted that he reached the spot in the forest after Chhotu had been killed, that he shook hands with the appellant pritamsingh who was present there, that Pritamsingh, Ramprasad and bhagwanlal dragged the dead body for some distance and that he and the other accused persons then covered the dead body with stones. It was also admitted by him in his examination under Section 313 ibid that he, Ramprasad and Devilal collected fuel in the forest and burnt Chhotus dead body and that the bones of chhotus dead body were recovered from the river-bed in consequence of information given by him under Section 27 of the Evidence Act. The learned counsel appearing for the State has urged that the admissions made by the appellant Birbal in his examination under section 313 ibid bind not only him but also the other accused persons. The contention that the other accused persons are also bound thereby has no substance. Section 30 of the Evidence Act, whereupon reliance has been placed by the learned counsel reads as follows: "when more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession. " under the said Section, it is only when a confession of a co-accused is proved that the Court can take it into consideration as against the other accused who is also affected thereby. Clear it is that what is contemplated is proof by the prosecution of a confession previously made and not a statement made in the dock by one accused against the other in a joint trial. Clear it is that what is contemplated is proof by the prosecution of a confession previously made and not a statement made in the dock by one accused against the other in a joint trial. Thus, the statement made by a co-accused confessing, partially or wholly his guilt when examined under section 313 of the Code of Criminal Procedure 1973 cannot be taken into consideration under section 30 of the Evidence Act as against the other accused affected thereby. The view is fortified by decision in the case of Mt. Sumitra v. Emperor, A. I. R. 1940 Nagpur 287. It may be mentioned that section 313 ibid corresponds to section 342 of the Code of Criminal Procedure 1898. It follows that the admissions or statements made by the appellant Birbal in his examination under Section 313 ibid cannot be taken into consideration against the other co-accused, persons. Even if it is assumed that the same can be taken into consideration against the other co-accused persons, they do not constitute substantive evidence and cannot be made foundation of conviction in the absence of other proof. ( 14. ) THE said admissions are certainly binding upon the appellant Birbal and they make him liable under section 201 of the Indian Penal code. ( 15. ) NOW, it follows that the convictions and sentences imposed upon the appellants Shripal, Pritamsingh, Ramprasad and Devilal cannot be upheld and those imposed upon the appellant Birbal under Section 302/34 also deserve to be set aside. The conviction and sentence imposed upon the appellant Birbal under section 201 must stand. ( 16. ) IN the result, therefore, the convictions and sentences imposed upon the appellants Shripal, Pritamsingh, Ramprasad and Devilal are set aside and these appellants are acquitted and set at liberty. The conviction and sentence imposed upon the appellant Birbalsab under section 302/ 34 are also set aside and he is aquitted of that charge. But the conviction and sentence imposed upon him (Birbal) under section 201 are maintained. ( 17. ) AS regards the miscellaneous judicial case No. 429 of 1978 we are of opinion that the strictures passed against the appellant Shersingh (P. W. 14) Police Sub-Inspector, are not called for because there was no information before him of the commission of a cognisable offence before registration of Marg by him in compliance with order of the S. D. O. Police. His application for expunging the adverse remarks, therefore, deserves to be allowed. Accordingly, it is allowed and the adverse remarks passed against him by the trial Court are expunged. Order accordingly.